Federal Circuit Opinion Astrazeneca v. Apotex Cites Patent Damages Treatise


The Federal Circuit once again cited Patent Damages Law and Practice as a leading commentary. The comprehensive treatise was co-authored by Chris Marchese, one of the bloggers on this site, and has been previously cited by the Federal Circuit as well as numerous district courts.

“In this case, Teva's settlement and Andrx's offer both arose only after the district court had held the patents valid and had made a finding of infringement as to both defendants. The setting in which those events took place was therefore similar to the setting of a hypothetical negotiation in which infringement and patent validity are assumed. In that context, Andrx's willingness to take a license for between 50 and 70 percent of its profits, and Teva's agreement to settle the infringement action against it for 54 percent of its net sales, constitute persuasive evidence that a royalty rate in the neighborhood of 50 percent of net sales for a similarly situated party would be reasonable. See Studiengesellschaft Kohle, m.b.H. v. Dart Indus., Inc., 862 F.2d 1564, 1570-72 (Fed. Cir. 1988); John M. Skenyon et al., Patent Damages Law and Practice § 1:15, at 25 (2013 ed.) (footnote omitted).”